Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-173.01 Last-Modified: 2000/09/15 [Page 154] HUNDRED AND SEVENTY-THIRD DAY MONDAY, 8th JULY, 1946 THE MARSHAL: May it please the Tribunal, defendant Fritzsche is reported absent. DR. HORN (on behalf of the defendant von Ribbentrop): With the permission of the High Tribunal I shall continue with my final presentation beginning with Page 34. The English text page number corresponds with the German text page number. Previous to the attempt to settle in a general way the concept of aggression and sanctions against aggressors, political alliances determined the obligations of the parties to wage war. In order to improve this unsatisfactory, anarchic situation, the United States Under Secretary of State, Bryan, took the initiative, in a series of separate treaties, in attempting to reach an agreement for periods of respite, which were meant to delay the outbreak of hostilities, and to allow passions to cool. The Covenant of the League of Nations took up this point of view, but went one decisive step farther by determining a procedure by which the League organs should determine the permissibility or non-permissibility of war. The decision indicated whether war was permitted or not according to the Covenant. The aim of this regulated procedure was to discover the disturber of international order, who was not necessarily identical with the aggressor. The State which went to war in accordance with the decision of the League of Nations' organs behaved in a lawful way, even when it undertook preliminary hostilities, and thus was the aggressor in the military sense. It was therefore apparent that the distinction between aggressor and attacked was not sufficient to guarantee a just settlement of international relations. Although these Covenant Regulations and the proceedings based thereon showed that the comparison of lawful - unlawful, permitted - prohibited, aggressor - attacked, did not apply, it was still being tried to brand as an aggressor anyone who offended against international order. As the essential decision miscarried owing to the difficulties just mentioned, attempts were made to evolve out of the incomprehensible legal concept a political decision by those organs of the League of Nations which were qualified for maintaining international order. Such was the case in the draft of a mutual assistance agreement elaborated in the year 1923 by order of the League of Nations Assembly. The Geneva protocol, which was meant to supplement inadequacies of the Covenant concerning the question of the settlement of disputes, also transferred to the League of Nations Council the decision of determining who had violated the agreement and was therefore the aggressor. All other attempts to outlaw war and settle conflicts mentioned by the British Chief Prosecutor have remained drafts, except the Kellogg Pact. It can probably be put down to this fact that the idea of a legal definition of the aggressor was once more taken up at the disarmament conference. In this way the definition was established in the year 1933 by the committee for questions of security, guided by the Greek Politis, of the general disarmament conference committee. Owing to the failure of this conference, the definition was made the object of a series of separate treaties at the London conferences in the same year. The only great Power participating was the Soviet Union, which had taken the initiative to trace back the definition to the disarmament conference. This [Page 155] definition has also been adopted by the United States Chief Prosecutor, who has based thereon the Indictment before this Tribunal for a crime against peace. This definition is no more than a proposal of the prosecution within the limits of the Charter, which does not give further details about the concept of a war of aggression. It must be emphasized that Mr. Justice Jackson cannot invoke in this matter any, universally acknowledged principle of International Law. The report of the 1933 commission did not become the object of a general treaty, as projected, but was merely agreed upon by a number of individual parties in agreements binding only those concerned. As a matter of fact, the only agreements were those between the Soviet Union and a number of States around it. No other great Power accepted the definition. In particular, Great Britain kept aloof, notwithstanding the fact that the separate agreements mentioned were actually signed in London. At least the participation of the great Powers would have been required for the constitution of a principle of International Law of such far-reaching importance for the reorganisation of international relations. Quite apart from this legal consideration, the utterances of the British and the American Chief Prosecutors show that also as far as facts are concerned the proposal is unsatisfactory. In the important question of point 4 of the definition, the British prosecution differs from the American. The old conflict of interests between mare liberum and mare clausum has led the prosecution to the point that Sir Hartley Shawcross did not mention - the naval blockade of the coasts and ports of a State as aggressive action. The definition of 1933 may offer valuable characteristics for establishing the aggressor, but one does not get around the fact that a formal legal definition shows the impossibility of doing justice to all actual political cases. With the attempt to set down a new regulation for creating order in the world in the Charter of the United Nations, one returned, having obviously recognized this truth, to the idea of a decision by an international organ without wanting to force its judgement into the painful position of a rigid definition. The Charter of Peace of San Francisco says, in Chapter VII, Art. 39: "The Security Council shall determine the existence of any threat to world peace and security or breach of the peace or act of aggression, and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security." In the year 1939 there was neither a recognized definition of the aggressor nor an institution authorized to designate the aggressor. The League of Nations as an institution for the settlement of disputes had completely failed. This was expressed outwardly by the fact that three great Powers had left it. How little the body of the League of Nations was noticed in international life was shown by the attitude of the Soviet Union in the Finnish question. It did not take into consideration in any way the decision of the League of Nations regarding this conflict but pursued its own interests in its dealings with Finland. If now, after these statements, I make a proposal to the Tribunal as to what should be understood by the word "attack" in Article 6a of the Charter, this qualification cannot be linked up with a definition recognized in International Law. Rather, there is nothing left to do but start off from the hypothesis which the practices of States and the traditions of diplomacy usually connect with it. According to the conception existing in the year 1939, the outbreak of war; in whatever way it happened, was not legally appraised. The Kellogg Pact and the negotiations following it have not been able to abolish this fact which was a result of centuries of development. This is deeply to be regretted but one cannot ignore reality. The fact that this opinion, when war broke out, is in accordance with the conception of International Law of the main participating Powers that had signed the Charter, follows from the fact that men of international reputation in the field of International Law were of the opinion that, should the Kellogg Pact and the [Page 156] system of collective security fail, the traditional legal conception as to war was still valid. Should Herr von Ribbentrop really have had the opinion in 1939 that his acts, measured by traditional diplomatic technique, would be considered as a crime punishable by International Law? I have already pointed out that generally, and therefore also by Herr von Ribbentrop, the then existing frontier line in the East was considered untenable in the long run and therefore in need of adjustment. The Peace Conference at Versailles created problems by satisfying the Polish demands when this State was newly created, problems which could not be solved by international co-operation in the time between the two world wars. These frontiers could never be guaranteed within the framework of European pacts. A guarantee for the Eastern frontier created by Versailles could not be reached within the framework of the Locarno treaties because of the opposing interests of the participating Powers, whereas it was arrived at for the Western frontiers. All that was achieved after endless efforts were arbitration treaties, connected with the Locarno system, between Germany and Poland and Germany and Czechoslovakia. They did not contain any guarantees for frontiers but only procedure for settling disputes. I shall deal with them when I come to the various violations of treaties of which Herr von Ribbentrop is accused. After Hitler had also expressed his distrust towards collective security by leaving the Disarmament Conference and the League of Nations, he went over to the system of bilateral treaties. In this connection, at the negotiations preparatory to the agreements between Germany and Poland of 1934 it was clearly stated that a solution of the problems between the two States should be found in the spirit of the treaty. We will not suppress here that only peaceful means were considered for this arbitration and a ten-year non- aggression pact was concluded. Whether Hitler believed honestly in the possibility of solving this problem, or hoped to change the untenable situation in the East by means of evolution, is of no importance for forming an opinion on Herr von Ribbentrop's behaviour. He did not take any initiative in this step, but found this agreement an existing political and legal fact. The experience of settling international disputes teaches that agreements are durable only when they correspond to political realities. If that is not the case, the force of facts oversteps of itself the original intention of the contracting parties. A great statesman of the nineteenth century expressed this truth by saying: "The element of political interest is an indispensable requisite of written treaties." Thus, the eastern question was not removed by the agreement of 1934, but continued to burden international relations. As shown by the evidence, it became more and more clear in the course of political evolution that sooner or later solutions of some kind had to be attempted. Both the statute of the Free City of Danzig, which was in contradiction with ethnological, cultural and economic facts, and the isolation of Eastern Prussia through the creation of a corridor had brought about causes for conflict, which a number of statesmen feared as far back as Versailles. Taking into consideration such a state of affairs, the English declaration of guarantee to Poland of 6th April, 1939, enlarged on 25th August, 1939, into the mutual aid agreement, sufficed in case of the appearance of a possibility of conflict with this country to make the Poles averse, from the very start, to a sensible revision, even within moderate limits. This declaration of guarantee shows once more to how great an extent Great Britain, taking a sensible political view, drew conclusions from the decline of the collective security system, and how small a confidence it had in the practical results of the moral condemnation of war through the Kellogg Pact. Herr von Ribbentrop had, therefore, to draw the conclusion from the behaviour of Great Britain that the attitude of the Polish Government, from which Germany [Page 157] was entitled to expect some concession, was bound to become rigidly inflexible. The development during the following months proved this conclusion to be right. The entry of the Soviet Union into the conflict shows in particular that the coming danger would take place within the compass of the usual principles of politics and the sustaining by each State of its own interests. The Soviet Union, too, had in her turn left the ground of the collective security system. She looked at the approaching conflict from the viewpoint of Russian interests exclusively. In accordance with this state of affairs Herr von Ribbentrop took pains at least to localise the threatening conflict, if it could not be avoided. He had every reason to hope for success in this endeavour, as both the Powers mainly interested in Eastern Europe, the Soviet Union and Germany, concluded not only the non-aggression and friendship agreement previous to the outbreak of armed hostilities, but at the same time they came to terms, by way of a secret agreement, concerning the future fate of the territory of Poland and the Baltic countries. Nevertheless, the machinery of the mutual aid agreements was set going, and thereby the local Eastern European conflict became a world conflagration. If one together with the prosecution wants to apply a legalised standard to these facts, one cannot do so without taking into consideration the Soviet Union from the point of view of participation. Through the participation of Great Britain and France, the conflict in Eastern Europe grew into a European one, inevitably followed by the universal war. The entry in the war of the Powers mentioned took place according to the form provided by the Third Hague Convention concerning the opening of hostilities, i.e., an ultimatum with a conditional declaration of war. At the session of 19th March, 1946, Mr. Justice Jackson, interpreting the Indictment, stressed the point that the extension of the war, brought about by the Western Powers, did not constitute a punishable aggression on the side of Germany. This interpretation is in keeping with his general argument concerning the concept of aggression. If he wished to carry this through quite consistently, he would logically have to declare Great Britain and France aggressors against Germany for having brought about a state of war by means of the ultimatum. I believe I am in harmony with the prosecution when I express the supposition that such a result would not meet with its approval. The prosecution has presented its evidence in such a way that it enters into the political- historical background of the war. It has accordingly not been satisfied with relying on the formal legal definition or any single criterion thereof. It accordingly confirms my conclusion, presented by me to the Tribunal, that the definition proposed by the prosecution is no suitable basis for the qualification of the indeterminable concept of aggression. May I confirm the events at the outbreak of the war: The Kellogg Pact and the concept of aggression - the prosecution's pillars do not sustain this. The Kellogg Pact had no legally conceived contents, either for States and even much less for individuals. The attempt to put life into it afterwards by means of a formal concept of aggression was frustrated by political reality. Herr von Ribbentrop's share in the extension of the conflict to Scandinavia was so small that it hardly can be laid to his charge as a separate action. The interrogations of the witnesses Admiral Raeder and Field- Marshal Keitel have shown beyond doubt that as a matter of fact Herr von Ribbentrop was informed of this operation for the first time only thirty-six hours in advance. His contribution was solely the elaboration of notes prescribed to him in content and form. Concerning the actual facts, viz., the directly imminent violation of Scandinavian neutrality by the Western Powers, he was limited to the information communicated to him. The evidence has shown, and I shall set forth later in legal argument that he, as Minister for Foreign Affairs, was not competent to check this information, and that he did not possess any actual means to do so. Presuming that this information was true, he could justly assume that the German Reich behaved in [Page 158] the intended action quite in accordance with International Law. I leave more detailed argument concerning this point of law to my colleague, Dr. Siemers, well conversant with this point, whose client, Admiral Raeder, had submitted to Hitler a large part of enemy information and the proposal for a German occupation of Scandinavia. In the case of Belgium and the Netherlands, it has been proved by evidence that unlimited maintenance of the neutrality of the Belgian and Dutch territory by these countries could not be guaranteed. Even previous to the war there existed between the general staffs of the Western Powers and those of both neutral countries agreements and constant exchange of practical knowledge concerning tactics and occupation in case of a conflict with Germany. Detailed deployment plans and fortification systems built under supervision of officers detached for that purpose by the Western Powers were meant to prepare the reception of allied forces. These projects included not only a co-operation of the armies concerned, but also the assistance of certain civilian authorities to carry out the supplying and the advance of the Allies. Of importance relative to these preparations is the fact that they were made not only for the case of defence, but also for the offensive. For this reason Belgium and the Netherlands also could not or would not defend themselves against British bomber formations continuously flying over them, whose near aim was the destruction of the Ruhr district, the Achilles' heel of the German war industry. This area was also the main goal of the Allies for an offensive on land.
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